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Defusing tensions in the South China Sea

Defusing tensions in the South China Sea

by Barry Desker, RSIS(12-21-12)

China has traditionally been a continental power focused on its landward Eurasian border. But a resurgent China in the 21st century will pay increasing attention to its maritime space as its gaze turns eastwards toward the United States, the dominant power of the 20th century, and Japan, which it has overtaken economically but with whom China has traditionally had a difficult relationship.

In response to a May 2009 submission by Vietnam and Malaysia informing the United Nations of the demarcation of their continental shelf boundary, China reiterated its territorial claims and submitted its nine-dash map enclosing most of the South China Sea. This was the first time the map was circulated as a UN document, although it was based on a 1947 Kuomintang government map. The Chinese move unsettled several ASEAN states, especially the Philippines and Vietnam, but also Malaysia and Brunei, which all have competing claims.

The nine-dash map is widely circulated in China, appears prominently in many government buildings and is now reproduced in Chinese passports. As a consequence, many members of the Chinese public believe the entire area falls within China’s territorial waters — if highly charged comments on the Internet are indicative of wider opinion. The failure by knowledgeable Chinese international lawyers and foreign-policy makers to publicly clarify the Chinese position on the South China Sea has increased apprehension in the region.

China’s public assertion of historical rights is not sustainable under the UN Convention on the Law of the Sea, although the claim to sovereignty over the rocks and islands within the nine-dash line could be consistent with the convention. Chinese naval and fishery protection vessels have mounted patrols in waters within the exclusive economic zone (EEZ) of claimant states, while China has offered leases on petroleum exploration blocks within Vietnam’s EEZ, even though China could not claim an EEZ overlapping with these areas extending from islands represented by its map.

Because of these developments, ASEAN meetings continue to be distracted by the South China Sea issue. At the close of the ASEAN summit in Phnom Penh on 18 November, the Cambodian prime minister, Hun Sen, said there was an agreement not to internationalise the issue. Left unchallenged, such an agreement would reflect the Chinese position on the issue. However, the Philippines and Vietnam, as well as Brunei, Indonesia, Malaysia and Singapore, submitted letters formally disagreeing with this view and the chairman’s final statement did not contain such a reference. If the Cambodian delegation had insisted on its version, the likely outcome would have been a repeat of the ASEAN ministerial meeting in July this year, which failed for the first time in ASEAN’s 45-year history to issue a joint communiqué.

As a major power, China’s preference is for bilateral negotiations — where it exercises greater leverage. While China enjoys excellent ties with ASEAN, it has referred to ASEAN–China and ASEAN+3 (China, Japan and South Korea) as 10+1 and 10+3 meetings, highlighting China’s approach of dealing with ASEAN members bilaterally. Attempts to nudge China in the direction of the adjudication of maritime boundary disputes by the International Court of Justice or the International Tribunal for the Law of the Sea will not succeed. In ratifying the UN Law of the Sea Convention, China opted out of compulsory binding dispute settlement. Instead, ASEAN and China have focused on developing norms, building mutual confidence and promoting cooperative behaviour, as seen in the 2002 ASEAN–China Declaration on the Conduct of Parties in the South China Sea.

ASEAN is now prioritising engagement with China on a code of conduct in the South China Sea, which will focus on issues such as the prevention of incidents at sea, crisis management, confidence-building measures and encouraging joint development. But progress is likely to be slow. While a grand package should be envisaged, it would be timely to move first on the implementation of confidence-building measures. These measures should focus on increasing exchanges and discussions at a non-official level aimed at reducing misperceptions and encouraging mutual confidence, establishing a hot line at the operational level between navies and coast guard units of regional states, agreeing on prior notification of military exercises in the South China Sea, and facilitating the rescue at sea of people and vessels in distress.

Provocative gestures, such as China’s decision to include its nine-dash map in its new passports, should be avoided. All claimant states are also guilty of occupying uninhabited islands and land features. They should agree to refrain from doing so. The aim should be to strengthen crisis management capabilities and to lay the groundwork for agreement on rules and procedures aimed at defusing tensions. From a Chinese perspective, the management of China’s relationship with ASEAN is critical. As a resurgent power with an increasingly global presence, many states will be watching how China deals with its neighbours. Lessons will be drawn on the impact for them of a rising China.

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3 thoughts on “Defusing tensions in the South China Sea”

The South China Sea issue will be tough to handle. China will call the shots because it is an emerging superpower. Its preference for bilateral negotiations is not acceptable to smaller claimant states like Malaysia and the Philippines and others. Having focused on developing norms, building mutual confidence and promoting cooperative behaviour, as seen in the 2002 ASEAN–China Declaration on the Conduct of Parties in the South China Sea,.ASEAN and China must continue the dialogue.

It would be best for Chinese and ASEAN diplomats, as Desker suggests, to start exploring in earnest issues such as the prevention of incidents at sea, crisis management, confidence-building measures and encouraging joint development, and leave the question of sovereignty aside in the interest of peace and security in the region.–Din Merican

The nine- dash line has eleven dashes when it appeared in 1947. Two dashes were deleted after Vietnam and China settled their differences in the Gulf of Tonkin. Sure, it will make more sense if the the line is drawn in accordance with modern international law, more specifically with the 1982 Law of the Sea Convention. However, many maritime boundaries in Southeast Asia, for example, fall short of international law requirements.

Page 8 of the Chinese passport carries a blank official map. There is no mention of the disputed Spratlys, the Paracels or Diayou in the passport.
States will always negotiate from the position of strength. Whether it is bilateral or multi-lateral approach, it is a negotiation technique. Is there anything wrong with this negotiation technique?

There is no single “elephant” in the South China Sea; every claimant and non-claimant state acts like one. It is true that China has been militarily assertive in the South China Sea since 1947, but so are, other claimants. Some claimants have converted cays and shoals in the Spratlys into artificial islands, complete with airstrips.

Some external powers have also been assertive lately in the South China Sea.
There are two different sets of territorial jurisdiction problems in the South China Sea: the intra-claimant disputes and their separate disputes with China. Reconciling them poses a challenge especially when the basis of the disputes is not identical. Solving one problem may not necessarily resolve the other.
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Thanks, Dr. Hamzah for your input. I wish more people of your academic background can express their views on this complex issue. I am sure those in Wisma Putra can contribute to the discussion since they will be involved in seeking solutions to the South China Sea issue.–Din Merican

The overlapping claim in the South China Sea seems to be the most complex and need a comprehensive decision to be resolved.It starts off since 200 years ago which involved China, Vietnam, Philippine, Indonesia, Taiwan, Brunei and not to forget Malaysia. Am not going to dwell on the historic part of it.Within this conflicting area there are about 200 odd island being disputed namely Paracel, Spratly, Prates, Pagasa, layang2, Swallow Reef and many more.

If we care to see the map of this area am also could not say which is which and to whom they may belong. This disputed region triggered mainly based on the protection of the EEZ. If am not mistaken Brunei is the only claimant which has not physically station her troops on the disputed region.Amnon Veron in his articles The Spratly Islands Embroilment says that The main factor for China to enhance her claim on the Spratly was her rapid improving economy based on her OPEN DOOR policy which kick off in 1978,

This overlapping claim could be more crucial due to the offshore development in term of mineral, oil ,gas and fishstock.I could perceived that there is no positive resolution as to how this overlapping claim to be resolved, not in the near future and its gonna be stalemate.Anybody dares to dispute the supremacy of the Chinese”s fleet.